Scottish Court of Session Decisions

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Cite as: [1878] ScotLR 15_645, [1878] SLR 15_645

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, June 21. 1878.

15 SLR 645

Special Case—Greig (Inspector of Poor of City Parish of Edinburgh)

v.

Young (Inspector of Poor of Perth Parish).

Subject_1Poor
Subject_2Relief
Subject_3Settlement of Illegitimate Pupil Child, Born while Mother in Jail.
Facts:

An Irishwoman with no settlement in Scotland, when living in the City Parish of Edinburgh was sentenced to nine months’ imprisonment, and in Perth General Prison, within Perth Parish, gave birth to a child. When released she returned to Edinburgh, but on her being shortly thereafter sentenced to seven years' penal servitude, her child was left destitute and became chargeable to the City Parish. Held (proceeding on the decisions in the cases of Macrorie v. Cowan, March 7, 1862, 24 D. 723, and Adamson v. Barbour, 13 D. 1279, 1 Macq. 376) that the parish which afforded relief had no claim of relief against the parish of Perth, in which the child was born.

Headnote:

On 18th May 1870 a female pauper named Elizabeth
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O'Brien or Young became chargeable to the City Parish of Edinburgh, and continued to receive relief from that date. She had been born on 24th December 1868 in the General Prison of Perth, in the parish of Perth, and was the illegitimate child of Bridget O'Brien or Young, a native of Ireland, who had not acquired any settlement in Scotland. In 1857 the mother had been resident in Edinburgh, where she became chargeable as a pauper to the City Parish, and was removed to Ireland. She afterwards returned to Edinburgh, where she was apprehended in 1860 upon a charge of robbery, and was sentenced on 10th November 1860 to five years' penal servitude, which she underwent in the General Prison of Perth. She was liberated on 25th January 1865. At the date of the birth of her child she was again a prisoner in the General Prison of Perth, having been sentenced by the Sheriff of Edinburgh on 29th July 1868 to nine months’ imprisonment for theft. When apprehended on that charge she had been living in the City Parish, Edinburgh. She was liberated on 29th April 1869. She was again apprehended on a charge of theft on 2d February 1870, and on 18th May 1870 was sentenced in the High Court of Justiciary at Edinburgh to seven years' penal servitude, and in consequence her child became a proper object of parochial relief, and chargeable to the City Parish there. Statutory notice thereof was duly given to the parish of Perth, and particulars of the advances made down to 25th November 1872 were sent to the inspector of that parish. The total amount advanced by the City Parish for board and clothing of the pauper from 18th May 1870 to 31st October 1876, with interest thereon for three years, was £65, 9s. 3d. The mother was liberated on licence on 12th January 1875. On all the above occasions of liberation she was returned to Edinburgh as the place of commitment by and at the expense of the prison authorities, but where she resided in the intervals of imprisonment is not known.

In these circumstances this Special Case was presented by George Greig, Inspector of Poor of the City Parish of Edinburgh, of the first part, and William Young, Inspector of Poor of the parish of Perth, of the second part, and the question submitted was—“Whether the parish of Perth, as the parish of the pauper's birth, is liable in repayment of the advances made by the City Parish of Edinburgh as the relieving parish?”

It was agreed that if the answer was in the affirmative decree should be given against the party of the second part for £65, 9s. 3d.

Authorities for City Parish of Edinburgh— Muir v. Thomson, November 7, 1873, 2 Poor Law Mag. 95; Craig v. M'Lennan, May 14, 1867, 39 Jur. 390; Gibson v. Murray, June 10, 1854, 16 D. 926.

Authorities for parish of Perth— Gibson v. Murray, supra; Craig v. Greig and Macdonald, July 18, 1863, 1 Macph. 1172; Adamson v. Barbour, July 2, 1851, 13 D. 1279, 1 Macq. 376; Macrorie v. Cowan, March 7, 1862, 24 D. 723; Suckley v. Whitborn, 2 Bullstrode's Rep. 358; Essling v. Hereford, 10 Modern Rep. 334; Hopkins v. Ironside, January 27, 1865, 3 Macph. 424; 1 Glen's Poor Law Statutes, 92.

At advising—

Judgment:

Lord Deas—This question relates to the right of relief by the City Parish of Edinburgh for aliment afforded to a female pauper child in pupillarity, named Elizabeth O'Brien or Young, and the parish of Perth, against which relief is claimed, is what is said to be the parish of birth of the child. The mother appears to be of very indifferent character, and has been very often under sentence of penal servitude or imprisonment. The child was born in the prison of Perth on the 18th May 1870, and the City Parish of Edinburgh contends that Perth, being the parish of the child's birth, is liable for relief.

Now, it is to be observed that the mother Bridget O'Brien was a single woman, and therefore her child is illegitimate, and being in pupillarity the result seems to be that if the mother has a settlement in any parish that parish must be the parish of settlement of the pupil child. Now, the mother has a parish of settlement. She was born in Ireland, and she has a birth settlement somewhere in that country. In that state of matters it appears to me that the case is ruled by that of Macrorie v. Cowan.

The circumstances of that case were slightly different, but the material facts are sufficiently like to place this case under the same rule of law. The question in Macrorie was as to the aliment afforded to a married woman who became insane and was put in an asylum. The peculiarities which existed in that case do not affect the applicability of the decision to the present. The question decided there was that the husband's settlement was also the wife's, and that she could have no other so long as the marriage subsisted. Here, instead of the indirect question of the husband's settlement, we have the direct question of the mother's, and as she has a birth settlement in Ireland it is quite plain that the case of Macrorie applies, and therefore her parish is the settlement of her illegitimate pupil child.

The only perplexity which occurred to me at first arose from the history of the mother as being under penal servitude during the time that relief was being afforded. Since the decision in Adamson v. Barbour it is settled that if the parent has a settlement that settlement is the settlement of all the children of the parent. Therefore I think that the City Parish of Edinburgh cannot claim relief from the parish where the child was born.

Lord Mure—I concur. This case is ruled by the cases of Macrorie and Adamson. There is no doubt that the settlement of an illegitimate pupil child follows that of the mother, and if the mother had had a settlement in Scotland there could have been no question in the case, for then that settlement would have been the settlement of the child. But here the mother had no settlement in Scotland, though she must have had one in Ireland where she was born. Now, if the mother had not been under sentence of penal servitude there would have been a plain remedy under the statute, namely, to remove her and child to Ireland, a remedy indeed to which the City Parish of Edinburgh had already resorted to in her case on a previous occasion. The mother, however, preferred being on the parish here in Scotland, and returned. But as the mother was, as a matter of fact, in penal servitude, she and her child could not be removed to Ireland. It is the misfortune of the City Parish that they cannot

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take steps to do this, and under the law laid down in the case of Macrorie that parish must take the expense of the child's relief until the mother's settlement is found.

Lord Shand concurred.

Lord President—I concur. The principle of the case of Macrorie is clearly applicable here.

The Court therefore found that the parish of Perth was not liable in repayment of the advances made by the City Parish of Edinburgh.

Counsel:

Counsel for Greig (Inspector of Poor of City Parish of Edinburgh)—Dean of Faculty (Fraser)— J. A. Reid. Agent— D. Curror, S.S.C.

Counsel for Young (Inspector of Poor of the Parish of Perth)— Keir. Agents— Tods, Murray, & Jamieson, W.S.
1878